TENORM REGULATIONS TIGHTEN RULES ON MANAGEMENT OF OIL AND GAS-RELATED TECHNOLOGICALLY-ENHANCED NATURALLY-OCCURRING RADIOACTIVE MATERIAL Posted: August 30, 2017
In response to the dumping of oil and gas "fracking" wastewater sludges from West Virginia into two Kentucky landfills, the Oil and Gas Workgroup collaborated for many months in order to produce a proposed set of regulations that significantly improve the regulation of TENORM associated with oil and has operations.
A package of regulations have been proposed by the Cabinet for Health and Family Services and the Energy and Environment Cabinet, adopting a specific regulatory framework for management and disposal of radioactive materials that occur naturally in the environment and are brought to the earth’s surface in conjunction with oil and gas exploration and development, and are altered or concentrated through human activity.
Below is a description of the new and amended regulations and the key points in each:
902 KAR 100:180 is a new administrative regulation proposed by the Department for Public Health in the Cabinet for Health and Family Services, which specifically addresses “Technologically Enhanced Naturally Occurring Radioactive Material related to oil and gas development.” The regulation includes these notable features:
• The scope of the regulation is oil and gas development, including drilling, operation, and closure of exploration, production, and disposal wells.
• Any TENORM with an activity concentration greater than 5 picocuries/gram (5 p/Ci) of combined Radium 226 and 228 (Ra-226 / Ra-228) generated from oil and gas development is subject to the regulation. Background radiation levels can be considered only if specifically allowed by the Department.
• The regulation reaches any person who receives, owns, possesses, uses, transfers. Transports, distributes, disposes, and arranges for disposal of TENORM wastes.
• Drill cuttings and associated residual pit fluids permitted and managed under KRS Chapter 353 are exempt. Extensive data reflects that the concentration of naturally-occurring radionuclides in the drill cuttings do not rise to the level of justifying regulation apart from proper pit closure-in-place.
• Produced water (brine) and flowback water from hydraulic fracturing that are disposed of in wells permitted under the Underground Injection Control program are excluded from additional regulation by CHFS.
• Representative sampling of the Ra-226/228 concentrations are required before any management of the wastes, in order to characterize radio-activity and to determine how the wastes are to be managed.
• Downblending of the waste activity levels by blending with bulking agents is not allowed except in order to solidify the wastes prior to disposal.
• TENORM waste that is transported off-site must be accompanied by a waste profile or manifest, and must be properly contained.
• If the waste activity concentration is between 5 and 100 pCi/g, it can be managed in any contained landfill under KRS Chapter 224. This lowers the acceptable upper limit from the current 1,999 pCi/g to 100.
• If the waste is between 100 and 200 pCi/g combined Ra-226 and Ra-228, it can either be disposed of “downhole” in a well specifically permitted for such disposal, or in a contained landfill meeting additional design and operating requirements.
• If the waste has more than 200 pCi/g of combined Ra-226 and Ra-228, it can either be disposed of “downhole” in a well specifically permitted for such disposal, or in a licensed low-level radioactive waste landfill (of which there are none in Kentucky).
• Downhole disposal of TENORM wastes is subject to several limits not found in other states that allow such disposal, designed to prevent Kentucky from becoming a dumping ground for TENORM wastes. First, the wastes proposed to be disposed downhole are limited to those generated in the same lease, pool, or unit from which the waste was generated. Further, there are technical standards requiring isolation of the waste from potential sources of drinking water (more on this later.)
• The regulation makes clear that importation of TENORM into Kentucky from any state other than Kentucky’s compact state partner Illinois, is prohibited. (Advanced Tenorm had argued that the agency had no jurisdiction over TENORM, but the revisions to KRS Chapter 211 during the 2017 session made clear it does have jurisdiction!)
• Recordkeeping is required.
• For any landfill accepting waste with a concentration between 100 and 200 pCi/g, workers must be trained and monitored through dosimetry badges.
The proposed regulation can be reviewed at http://www.lrc.ky.gov/kar/902/100/180reg.htm
The comment period is open through end of day August 31, and can be emailed to Tricia.Orme@ky.gov
A package of changes to the Energy and Environment Cabinet regulations are intended to complement the new CHFS regulation. In a nutshell, they provide as follows:
401 KAR 45:060 is a technical amendment to the existing “Permit By Rule” regulation to revise the reference to the regulation of pits associated with oil and gas development. The former provisions of 401 KAR 5:090 and being incorporated into a different regulation.
401 KAR 48:005 is the definition regulation for Chapter 48 and is being revised both in conjunction with the oil and gas regulations and as part of a larger “regulatory reform” effort. Definitions not used in the chapter are being removed. A new definition of TENORM is added to be consistent with the statute change in the 2017 session.
401 KAR 48:090 revises the standards for contained solid waste landfills to:
• Prohibit acceptance and disposal of oil and gas TENORM wastes with an activity concentration of over 200 pCi/g of combined Ra-226 and Ra-228.
• Require enhanced daily and final cover and closure requirements for wastes over 100 pCi/g, including six additional inches of daily cover and requiring that the 12 inches of daily cover be left in place and not removed.
• Include both a low-permeability soil layer for final closure in addition to a synthetic membrane liner. Reference was not made to the Part C standards of RCRA for hazardous waste landfills, since they would allow for less cover than proposed here.
The cap for a contained landfill accepting less than 100 pCi/g of combined Ra-226 and Ra-228 will include, from the top down, 3 feet of vegetated soil cover, 1 foot drainage layer, 18 inches of clay with a maximum permeability of 1 x10 -7 cm/s, a filter fabric, 1 foot of sand gas venting layer, another layer of filter fabric. That is a total of 6.5 feet in addition to any daily or long-term cover that remained in place. A 40 mil heavy gauge plastic synthetic liner could be used instead of the clay.
For any contained landfill accepting wastes with a combined Ra-226 and Ra-228 concentration of over 100 and less than 200 pCi/g, both the 40 mil geomembrane liner and the clay liner (or geocomposite clay liner which has an even lower permeability than clay) would be required.
By contrast, a RCRA Subtitle C (hazardous landfill) cap requires only 0.6 meter of vegetated soil, a filter layer, 0.3 meter drainage layer, a 0.5 mm geomembrane, 0.6 meter low permeability soil, and a foundation layer or intermediate waste cover. Converted from meters, the Subtitle C cap equates to about 2 feet vegetative, 1 foot drainage, and 2 feet of clay, for a total of 5 feet. This is less than the enhance cap proposed in these regulations. Also, the proposed regulations require a 40 mil liner, which is twice the thickness of the 0.5 mm geomembrane allowed under Subtitle C.
805 KAR 1:060, which regulates the plugging of wells, is updated in several respects that are not related to TENORM disposal. A new Section 7 is added specifically regulating the downhole disposal of TENORM waste, and requiring
• Consent from the owner of the oil and gas rights
• That the TENORM have been generated on the same lease, unit, or pool where it is proposed to be disposed of
• That the disposal zone be at least 200 feet below the lowest drinking water aquifer (called an “underground source of drinking water”)
• That a cement plug be placed in the well below the waste, and that the well be cemented from the top of the waste disposed all the way to the surface, and be marked with a permanent radiation marker
• Recordkeeping and characterization of the activity of the waste prior to disposal.
805 KAR 1:071 and 805 KAR 1:091 repeal two regulation whose requirements have been moved to 805 KAR 1:060, so that it can be stated that “two regulations were eliminated” under the Administration’s Red-Tape Reduction Initiative.
The text of the amended regulations can be found by linking to http://www.lrc.ky.gov/kar/titles.htm and clicking on the applicable Title (i.e. 401 or 805) and then on the regulation. Comments on the changes to 401 KAR 45 and 48 can be sent by end of business August 31 to Louanna.Aldridge@ky.gov, and comments on the changes to Chapter 805 regulations can be sent by end of day August 31 to Michael.Mullins@ky.gov
This fact sheet was prepared by Tom FitzGerald, Kentucky Resources Council, Inc. for public use and distribution. Any errors are entirely the responsibility of the author.